Volume 89.4
June
2022

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Article
Volume 89.4
Kids Are Not So Different: The Path from Juvenile Exceptionalism to Prison Abolition
Emily Buss
Mark and Barbara Fried Professor of Law at the University of Chicago Law School

Thanks to Herschella Conyers, Jessica Feierman, Martin Guggenheim, Esther Hong, Genevieve Lakier, Robert Schwartz, and Elizabeth Scott for their helpful comments and to Alexandra Bright Braverman, Eleanor Brock, Ryne Cannon, Robert Clark, Kyra Cooper, William Cope, Kim Johnson, Tori Keller, Crofton Kelly, Rachel Smith, and Anna Ziai for their excellent research assistance. Thanks to the Arnold and Frieda Shure Research Fund for its generous support of this research. 

Inspired by the Supreme Court’s embrace of developmental science in a series of Eighth Amendment cases, “kids are different” has become the rallying cry, leading to dramatic reforms in our response to juvenile crime designed to eliminate the incarceration of children and support their successful transition to adulthood. The success of these reforms represents a promising start, but the “kids are different” approach is built upon two flaws in the Court’s developmental analysis that constrain the reach of its decisions and hide the true implications of a developmental approach.

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Volume 89.4
Contractual Evolution
Matthew Jennejohn
Professor of Law, BYU Law School
Julian Nyarko
Assistant Professor of Law, Stanford Law School
Eric Talley
Isidor & Seville Sulzbacher Professor and Faculty Codirector of the Millstein Center for Global Markets & Corporate Ownership, Columbia Law School

Conventional wisdom portrays contracts as static distillations of parties’ shared intent at some discrete point in time. In reality, however, contract terms evolve in response to their environments, including new laws, legal interpretations, and economic shocks. While several legal scholars have offered stylized accounts of this evolutionary process, we still lack a coherent, general theory that broadly captures the dynamics of real-world contracting practice. This paper advances such a theory, in which the evolution of contract terms is a byproduct of several key features, including efficiency concerns, information, and sequential learning by attorneys who negotiate several deals over time.

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Comment
Volume 89.4
The Exception to Rule 12(d): Incorporation by Reference of Matters Outside the Pleadings
Laura Geary
B.A. 2018, Swarthmore College; J.D. Candidate 2023, The University of Chicago Law School

I thank Professor William H.J. Hubbard for his expert guidance and thoughtful feedback as well as the editors of the University of Chicago Law Review

This Comment explores the history of Rule 12(d), describes courts’ varying uses of the exception, and proposes a unifying method of interpretation for the future. Drawing on other procedural rules and an analogous doctrine in contract law, it argues that only unmistakably referenced written instruments may be incorporated.

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Comment
Volume 89.4
In Need of Better Material: A New Approach to Implementation Challenges Under the IDEA
Annie Kors
B.A. 2018, Yale University; J.D. Candidate 2023, The University of Chicago Law School.

Thank you to Professor Emily Buss for thoughtful feedback throughout this process and to the incredible editors of the Law Review

How far may a school district deviate from the services specified in an IEP and remain in compliance with the IDEA? In other words, how much of the adequate written plan is the student in fact entitled to receive? There are two existing approaches to failure-to-implement cases: the materiality approach and the per se test. This Comment argues that both approaches are flawed.

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Comment
Volume 89.4
The Constitutionality of Orthodoxy: First Amendment Implications of Laws Restricting Critical Race Theory in Public Schools
Dylan Salzman
B.A. 2019, Middlebury College; J.D. Candidate 2023, The University of Chicago Law School

I would like to thank Professors Geoffrey Stone, Aziz Huq, and Genevieve Lakier for their guidance. Additional thanks go to the editors and staff of the University of Chicago Law Review for their thoughtful advice and insight. 

This Comment argues that existing doctrine supports recognizing a student right to be free from political orthodoxy in public education. It proposes a burden-shifting test for vindicating that right.